Written by: Natasha L. Edgar
Substance Use Policies and alcohol/drug testing as a part of those policies have become more common place in workplaces, particularly “safety sensitive” workplaces.
In general, there are two instances where an Employer’s Substance Use Policy may call for alcohol and/or drug testing:
1) Post-incident; or
2) Reasonable cause.
Recent successes at arbitration by Moore Edgar Lyster LLP have helped to establish some general principles that apply to reasonable cause testing under an Employer’s substance use policy. Partner Rick Edgar has recently successfully argued three cases establishing the limits of reasonable cause testing on behalf of the Marine Workers and Boilermakers Industrial Union, Local 1 in a series of cases:
Vancouver Drydock Co. Ltd. v. Marine Workers and Boilermakers Industrial Union, Local 1 (JE Grievance #2), 2020 CanLii 75896 [Vancouver Drydock JE Grievance #2]
Some general principles to consider in a reasonable cause testing case include:
1. Each individual case “must be assessed in the context of its particular circumstances”, and “assessed on its own merits”: Vancouver Drydock CL Grievance;
2. Even if there may otherwise be grounds to conduct one or more tests, the employer must engage in “a balancing of interests between an employee’s right to the privacy and the integrity of his or her person with the legitimate business and safety concerns of the company” before it decides to test. If it does not do so the testing may be ruled to be improper: Vancouver Drydock CL Grievance;
3. There must be a proper “basis [in the evidence] on which alcohol and/or drug testing can be justified”: Vancouver Drydock CL Grievance;
4. The trigger for reasonable cause testing must be assessed, and the testing must not exceed the necessary scope of testing required. This is because significant privacy interests are engaged whenever an employee is subjected to biological testing: Vancouver Drydock JE Grievance #1; and Vancouver Drydock CL Grievance;
5. Even if an Employer’s policy requires testing for both drugs and alcohol, if the only reasonable cause is the smell of alcohol and no signs of impairment are noted, then only a test for alcohol is indicated and a test for drugs is an unreasonable invasion of the grievor’s privacy: Vancouver Drydock JE Grievance #1; and Vancouver Drydock CL Grievance;
6. If the testing is not based on reasonable grounds, and thus a breach of the grievor’s privacy, then the results of the test, and any evidence that depends on a the result of the testing (for example, the conclusion of a doctor conducting an Independent Medical Exam or subsequent monitoring results) are not admissible in the arbitration hearing: Vancouver Drydock CL Grievance; and Vancouver Drydock JE Grievance #2.
Moore Edgar Lyster LLP partner, Tamara Ramusovic, also recently successfully argued a case about post-incident testing involving a “near miss” at a safety sensitive worksite. The analysis of post-incident testing is distinct from reasonable cause testing. The decision can be accessed here: Vancouver Shipyards Co. Ltd. and CMAW, Local 506 Marine and Shipbuilders (JS Grievance), August 26, 2020 (McPhillips) (unreported).
This blog contains general legal information and does not constitute legal advice. This area of the law is constantly evolving. Readers with questions about their particular situation should contact a lawyer. To speak to the lawyers at Moore Edgar Lyster LLP about Substance Use Policies and/or Drug and Alcohol Testing, you can reach us here.